Mary Henry (Independent)

I move amendment No. 32:

In page 7, subsection (8), line 9, after"alleged" to insert "excluding any reference to a specific intent".

I did not think it up on my own and was given advice on this matter as follows:

This has caused confusion and difficulty in the jurisdiction of England and Wales since "act alleged" can be taken to mean the offence alleged. Where the offence is murder, a person may be technically found to have committed murder when if found fit to plead they would have had available to them the defence of diminished responsibility (see R -v- Antoine [2000] UKHL 20;[2000] 2 All ER 208 (30th March 2000). Similar problems can arise even in relation to offences such as theft where the capacity of a mentally disordered person to form mens rea can be severely impaired e.g. due to significant intellectual disability. It is essential that this section should specify that "act alleged" does not include any element of the mens rea for the offence as charged. In the alternative, in each case the trial should proceed to consider whether the person accused at material time had the mental capacity to form the requisite intent.